is unnecessary however to enlarge on a point so often considered, and so fully and ably examined in the various decisions. We think the devise to the plaintiffs clearly good, and that by the settled law of this state they are capable of taking and holding the lots in question, for the purposes expressed in the will.'" Prof. Dwight, on page 308 of his argument, says: "The statutes of 39 and 43 Elizabeth, which established a board of commissioners to enforce charities, subject to an appeal to the Court of Chancery, only created an ancillary jurisdiction. The court, as such, entertained jurisdiction in charity cases contemporaneously with the commissioners. In the reign of Queen Elizabeth the subject of charities attracted more fully than before the attention of the legislature. It was thought expedient to establish a board of commissioners for charitable uses. The first statute regulating the subject is the 39 Elizabeth, ch. 6, (Appendix No. 1, p. 116); the second was passed in the 43d year of the same reign, ch. 4, (Appendix No. 2, p. 120). The true office and functions of these statutes were, not to create a new authority, but to exercise an already existing jurisdiction in a new manner. This is shown:-(1.) From their Terms and Phraseology. The first one shows most clearly the intention of parliament. The preamble recites that charitable gifts, which are enumerated, had been and are still like to be most unlaw fully and uncharitably converted to the lucre and gain of some few greedy and covetous persons, contrary to the true intent and meaning of the givers and disposers thereof; the end of the act being, that the uses may from henceforth be observed and continued according to their true intent and meaning. It is then provided, that the Lord Chancellor, or the Chancellor of the Duchy of Lancaster, (as the case may be), may award commissions to the bishop of the diocese and other persons, with a jury, to inquire of such gifts and of the abuses, misdemean

ors, and frauds which have arisen, &c., so that the intent of the donor cannot be performed. The statute 43 Elizabeth is nearly like the first in its phraseology, although the reasons for enacting it are not so distinctly stated. This language is so clear in its meaning that Mr. Boyle says, that the statute professes to be a measure purely remedial, and that it leaves the original jurisdiction of the Court of Chancery as before. (Boyle on Charities, p. 12):--(2.) The Subjects Embraced Within The Statute lead to the same conclusion. Corporate foundations, as well as those which are unincorporated, legal gifts, as well as those which are equitable, are provided for. Thus a statute passed in the eighteenth year of Queen Elizabeth's reign (18 Elizabeth, ch. 3, p. 9, A. D. 1576,) had exempted all manner of conveyances to the use of the poor from the statutes of mortmain, and had expressly enacted that it should be lawful to give to any person or corporation for their benefit, and yet the poor are mentioned in these acts in the same connection with other gifts and appointments of a charitable nature. These statutes apparently establish a power of visitation. There is no word or line in them which purports to create a new capacity to take property. When Parliament intended to give capacity they knew how to express themselves, as will be seen in the 18th Elizabeth just cited, explained by an act passed in the 39th Elizabeth, c. 5, (Appendix No. 1, p. 1,) immediately preceding one of those in question:-(3.) The Decisions of The Courts sustain this view. 'Thus,' says Duke, 'the Commissioners cannot by their decree make a corporation, not before incorporated, and enable them to take charitable uses as a corporation.' They may, however, cause trustees to convey from time to time, so as to keep up the number originally appointed. This, as has been seen could have been done by the Court of Chancery without reference to the statute. (Arnold v. Bar

ker, supra, p. 339.) It is true, that some have supposed that an unwarrantable extent was given to uses defectively created in point of form, and that this result was arrived at through a forced construction of the words, 'given, limited, appointed, and assigned,' employed in the statute in respect to the methods in which charities were created, and especially of the word 'limited.' The word 'limited' enlarged the power of disposition. (Boyle on Charities, p. 18.) This idea must now give way to the conclusions derived from the Charity cases already cited, which clearly show that the Court of Chancery, in cases of charitable uses, disregard both the Statutes of Wills and the Statutes of Mortmain, (Charity Cases, Appendix, No. 2.) No decision, it is believed, can be found where the Commissioners were held to have acquired a power to establish a use which, before the Statute of Charities, by the general rules of equity jurisprudence, would have been intrinsically void, nor does any case adjudged by the Commissioners go further than the equity cases already cited. A similar result may be derived from: (4.) The Nature of The Commissioners' Authority. Matters appear to have come before the Chancellor, to have been in part disposed of by him and then to have been referred to the Commissioners. (Duke on Charitable Uses, p. 50.) He would also hear, on original bill, a case, and give general direction as to the charity, and then refer the settlement of the details to the Commissioners, who would assume the place of a Master in Chancery, and make a decree which was substantially in the nature of a Report (Case of the Parish of Gillingham, Charity Cases, Appendix, No. 2, pp. 87-92.) They were not an independent tribunal. It is true, they could make a decree, but could not enforce it if it were disobeyed. They must call on the Chancellor to imprison the recusant party. (Duke on Charitable Uses, p. 158.) If they issued a summons to a party,

and he refused to attend, they certified the fact to the Lord Chancellor. This functionary expressly declared in one case, as a reason why the party should appear before them, that otherwise the breach of trust would go unpunished, unless in Chancery, which were a tedious and chargeable suit for poor persons. (Duke, 69, 5 Charles I. A. D. 1630.) The object of the commission, probably, was to save expense by causing a summary inquiry to be made with a jury in the counties where the property given to charities was situated. It proved to be a piece of cumbrous machinery, and soon fell into disuse. It was wholly in the discretion of the Chancellor to do what he saw fit with their decrees. 'Thus,' says Moore, 'it is in the breast of the Chancellor to award the commissions, or to confirm or annul the decrees, by which he can prevent or avoid their multiplicity perfectly well.' It will be remembered that Moore penned the statute of charities. (Rivett's Case, Moore's R., 890.) Shortly before the time of Queen Elizabeth, it had been customary for the Crown to issue special commissions to hear equity causes. This practice, originating in the reign of Henry VIII., was greatly resorted to, at the close of the Queen's reign, on account of the illness of the Master of the Rolls, and the pressing nature of the Lord Chancellor's engagements. The publications of the Record Commissioners have shown the immense amount of business pressing upon the attention of the Chancellor during the reign of Queen Elizabeth. Their list contains titles of eighteen thousand cases, which were commenced during that reign of forty-three years, which confirms Lord Coke's statement that the Chancery causes averaged 400 per year. Many of these cases were closely litigated. The Chancellor only delegated cases which he could have heard if he had seen fit. (Hargrave, Law Tracts, 310.) The Statute Commission of 43 Elizabeth

which, so far as it is consistent with our political condition, we have adopted, certain principles already established respecting voluntary conveyances to charity, I can see no reason growing out of our rejection of the principles of a State religion for holding that they are inappli cable to our institutions.' This case was followed by Tuckerman v. The Rector, Churchwardens and Vestrymen of St. Clement's Church (4 Selden 558). The decree in the Superior Court of the City of New York, which was the court below (3 Sand. S. C. R., 242), was affirmed. No case has been before this court since that period, in which these principles have been shaken. We confidently claim they establish the validity of the trust of this will. The case of Owens v. The Missionary Society of the Methodist Episcopal Church, decided three years later (4 Kernan, 380), was the next charity case before this court. In that case certain legacies were bequeathed to a voluntary association then existing, and which, subsequently to the death of the testator, merged in and became incorporated as a Missionary Society. The language of Judge Selden, who gave the opinion of the Court in that case, may be inconsis tent with the language used by Judge Denio, in Williams vs. Williams; but the case of Owens does not decide any point which conflicts with the judgment in that case. The difficulty in Owens' case was, that there was a direct bequest to an unincorporated body, which had no legal capacity to take property, and that the language of the testator was so indefinite that the trust could not be carried into effect. The Court expressly distinguished that case from Williams vs. Williams, because in the latter case the fund was bequeathed to trustees competent to take it. It is not necessary for us at this time to attack what was decided in the Owens case, although one of the objections to the validity of that charity is clearly without foundation. Another case very

as a charitable gift, and that the repeal of the English statute of charitable uses has no just influence upon that question. There is nothing in the situation or circumstances of this country or in the form of Government, which renders the general principles of the law of charity, as understood in England, inapplicable to us. The duty of providing for the poor and the necessitous, in respect to their physical wants, as well as in regard to their religious, moral and intellectual well-being, does not depend upon the form of government, but is equally binding whether the people are governed by representative institutions, or by hereditary rulers; nor does the consideration that a religious establishment is forbidden, and that all preferences among religious denominations are prohibited, require the abolition of the law of charity. Should it be conceded that the practice of systematic charity and legal sanctions by which it is regulated and sustained were introduced into civilized society along with Christianity, this would not prove them to be inconsistent with our own institutions. Waiving an examination of the question how far, or whether to any extent, Christianity, in this state, is a part of the law of the land, it may be safely affirmed that there is nothing in our institutions hostile to the general doctrines of the Christian religion. Although Christianity is not the religion of the state, considered as a political corporation, it is, nevertheless, closely interwoven into the texture of society, and is intimately connected with all our social habits, customs and modes of life. The provision for creating religious corporations recognizes the duty of the government to provide facilities for the voluntary establishment of public worship. A legally organized system for protecting and preserving gifts and donations in aid of Christian charity would fall within the same principles, and would be equally unobjectionable. When, therefore, we find in the common law of England,

recently decided in this Court, and to which attention will be next called, is that of Beekman vs. Bonsor, (9 Smith, 298; 23 N. Y. Reports). No point was decided in that case adverse to the decision in Williams vs. Williams. This, Judge Comstock, who wrote the opinion, expressly holds. He states that the joint authority of both decisions establishes that a gift of charity is maintainable in this state, if made to a competent trustee, and if so defined that it can be executed as made by the donor, by judicial decree, although it may be void according to general rules of law, for want of ascertained beneficiaries (p. 310). It is evident it was not intended by the court to overrule the case of Williams v. Williams. There were many dicta in that case, but the only point bearing upon the subject now before the court which it was then necessary to decide was, that if a charitable gift is uncertain and indefinite, or can be reduced to a certainty only by the discretion of executors, who renounce the executorship, the trust is void, and the next of kin are entitled to the fund. This of course, does not affect a case where there is no uncertainty,-where positive directions are given to the trustees, and where they do not renounce the trust. The case of Beekman v. Bonsor, therefore, may be dismissed from consideration. The elaborate argument of counsel in that case as reported in the appendix to 23 New York Reports (9 Smith 575), was not necessary to the adjudication of the actual points which were presented for decision. A person might admit the main portions of the law of charitable uses, and still agree with the decision in Beekman v. Bonsor; though, if all the dicta in that case were true, many of the important powers of the court would be so curtailed as to make it well nigh impossible to administer a charity. We think that the plain distinction was overlooked in that case between the validity and the administration of a char

itable trust. There is nothing in the case of Downing v. Marshall, decided by this court last year (23 New York Reports, 9 Smith, 366), which interferes with the trusts of this will. It is true that the court decided that no charitable bequest can be made to an unincorporated association, for religious or charitable purposes, and that no power in trust can operate to give the rents and profits of land to a corporation which is not authorized to take land by will. Neither of these points, however, are applicable, because the true construction of our will requires that the property shall be given to a corporation, and, as we have already shown, to such a corporation as possesses all the powers necessary to carry the charity into effect. Ours, being in the main a gift of personal property, would, so far as that is concerned, also be governed by the general rule that corporations are free to take money or personal property by testamentary gift (same case, p. 73). There is, therefore, no case in the Court of Appeals which interferes with Williams v. Williams. It is evident, however, that all these cases, since Williams v. Williams, must be again submitted to the court, under the light of the cases in chancery which have been extracted from the reports of the commissioners of charities. It is proper for us to say, with all respect, that this court must recede from some of its positions in these last two cases, in 23 New York Reports, and abandon the dicta found in the opinion of individual judges. No case for many years has been of sufficient importance in the amount of property involved to warrant the extended and minute investigation necessary to solve an obscure historical question like this. The judges who have given able opinions upon these questions have not had our side of the question presented in all its fullness. The opponents of charities have had their views presented before this court in the ingenious argument in the case of Beekman v. Bonsor, above